DRF Thompson 01 2122 CP TT4 PDF

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Drafting Thompson Instructions to Counsel 01 2122 CP TT4...

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DRF-THOMPSON-01-2122-CP-TT4

IN THE COUNTY COURT BETWEEN

MR HEATH THOMPSON Proposed Claimant -and-

BRIGHTWELL & BRYANT (a firm) Proposed Defendants

________________________________ INSTRUCTIONS TO COUNSEL ________________________________ Counsel has herewith: i) Proof of evidence of Heath Thompson ii) Memo from Edith Walsh to Tim Connolly of Instructing Solicitors which summarises the contents of the file which those instructing Counsel received from Brightwell & Bryant. iii) Letter dated 5th December 2019 from Brightwell & Bryant to Mr Thompson iv) Particulars of Claim v) Medical report vi) Defence Counsel is instructed on behalf of Mr Heath Thompson in respect of a claim which he wishes to commence against his former solicitors, Brightwell & Bryant, for negligence and breach of contract arising out of a personal injury claim which they were instructed to handle on his behalf. As Counsel will see from the attached papers, Mr Thompson was injured at work on 4th August 2017. As a result of the injury, he was off work for 6 months. Details of Mr Thompson’s losses are set out in the original Particulars of Claim and in his proof of evidence. After some initial hesitation, Mr Thompson consulted Brightwell & Bryant in relation to his injury on 5th December 2019. As Counsel will see from the enclosed papers, they made some efforts to advance the matter before proceedings were issued but failed to take any proper steps to progress the claim after it was commenced and, in particular, to comply with the relevant Civil Procedure Rules and an Order of the Court. As a result of this, the claim was struck out on 26th March 2021. Those instructing Counsel took over this matter on 11th June 2021. However, Brightwell & Bryant were dilatory in handing over their files and only did so in October 2021, as a result of the intervention of the Solicitors’ Regulation Authority.

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Counsel is referred to the attendance note of Edith Walsh, a trainee solicitor in this firm, who reviewed the file of papers this firm received from Brightwell & Bryant. Counsel is assured that this attendance note is an accurate summary of the contents of that file, and for that reason Counsel has not been troubled with all the documents in the file. Mr Thompson cannot, of course, issue fresh proceedings against The Furniture Co Ltd, as the limitation period for commencing an action for personal injuries has expired. His only option is to sue his former solicitors, Brightwell & Bryant, for the delay in their conduct of this relatively simple personal injury action and their failure to comply with the Civil Procedure Rules and the Order of the Court, which led to the action being struck out. Mr Thompson wishes to recover all the losses, including damages for personal injury and loss of earnings, that he would have been able to recover against his employers, had the matter been progressed properly. In view of the employers’ admission of negligence, it is clear that, had the action not been struck out, Mr Thompson would have recovered damages. The only issue related to the quantum of those damages. Therefore, had Brightwell & Bryant acted with proper care and skill, the employers would almost certainly have settled the matter, because there is no doubt that Mr Thompson had sufficient documentation to prove all the loss and damage that he claimed in that action. Counsel is also asked to include a claim for recovery of the costs Mr Thompson incurred in the proceedings against The Furniture Co Ltd, both the costs that he paid to Brightwell & Bryant and the costs which he is liable to pay to The Furniture Co Ltd. In this claim, the Professional Negligence Pre-Action Protocol has been complied with. It is likely that the solicitors’ insurers will settle this matter. However, they are unlikely to enter meaningful negotiations unless proceedings are issued. Counsel is therefore asked to draft appropriate Particulars of Claim. Dated 8th November 2021 Tim Connolly Morland & Smith Morland House St James Street London W1 4DX Solicitors on behalf of the Claimant.

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PROOF OF EVIDENCE OF HEATH THOMPSON I joined The Furniture Co Ltd in 2012 as a Loading Operative. The Furniture Co Ltd manufacture and supply prefabricated flat furniture packs. I basically work a 30-hour week and receive payment of £280 per week net. In my spare time I run a carpentry business from my garage, making cupboards and shelves for various property developers and building contractors. I advertise in the local trade directory and make lots of contacts through my job with The Furniture Co Ltd. That is why I continue to work for them despite the fact that the carpentry work is my main source of income. On 4th August 2017, I was injured in the course of my employment with The Furniture Co Ltd. I was working at the warehouse in the loading bay. The furniture packs were sent down a line of rollers (basically a conveyor belt) one by one. One employee loaded the furniture packs onto one end of the conveyor belt, and one stood at the other end of the conveyor belt and took them off it and handed them to the lorry driver, who then loaded them onto a lorry, ready for delivery to the customers. On this day, Rajesh Patel, another Loading Operative, was at one end of the conveyor belt, and I was at the other end. Rajesh put the packs onto the conveyor belt, and I lifted them off it and handed them to the lorry driver. We had loaded about 8 furniture packs onto the lorry in this way by the time the accident happened. As I was in the process of lifting the 9th furniture pack off the conveyor belt to hand to the driver for loading onto the lorry, Rajesh Patel sent the 10th furniture pack down the conveyor belt. It fell off the end of the conveyor belt and hit me in the right leg from behind, in the area behind the knee. I fell to the ground, bending my knee very awkwardly in the process and striking the front of my right knee on the ground. Rajesh Patel should have waited for me to shout “OK” or “Next” before he sent the next pack down the conveyor belt, unless he could see that I had finished lifting the previous pack off the conveyor belt and was standing facing him waiting for the next furniture pack to be sent down the line. On this particular day, it would have been impossible for him to see me, because there were furniture packs piled up all over the place. He told me afterwards that he was sorry and said that he “should have looked”. I also saw the Accident Book entry and it read “Loader sent pack down the rollers without checking. Hit Heath Thompson in the knee.” My employers were very shaken by this accident because they realised that they had not really given us any proper instructions in the method of work, or any training on how to carry out the work safely. Even more importantly, they should have had a steel guard fitted to the end of the conveyor belt, preventing anything from falling off it and striking anyone. A guard was fitted to the conveyor belt immediately after the accident. As a result of the accident, I was off work for a full 6 months, and during that time I was unable to undertake any carpentry work or return to my employment with The Furniture Co Ltd. My employers paid me contractual sick pay during that period at the rate of £180 per week. My net loss was therefore £100 per week, as my usual net weekly pay was £280 per week. I also suffered a substantial loss of earnings as a result of my inability to do any carpentry work during this time. Between August 2015 and August 2017, I earned an average of £40,000 net per year from my carpentry business. In the year between August 2017 and August 2018, I earned only £20,000 net. It is clear that, as a result of the 6 months when I was off work and unable to undertake any carpentry work, I lost £20,000 net from my carpentry business. Since August 2018, I have earned, on average, £42,000 net per annum from my carpentry business. Given the circumstances of the accident, I at first assumed that my employers would offer me some compensation for the accident, but I heard nothing from them, so I eventually decided, with some reluctance, to get some legal advice. I first attended Brightwell & Bryant solicitors on 5th December 2019. I had never used them before, but they have offices near my house, and they had a large advertisement on the window claiming to be specialists in personal injury 3 © City, University of London 2021

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litigation. That is the only reason I chose them. I met Mr Tom Bryant, a partner in the firm, and he told me that he would conduct my claim against The Furniture Co Ltd. I told him to do whatever was necessary to progress the case, including issuing proceedings and acting on my behalf in those proceedings. I also told him that, based on what I had heard in the warehouse, my employers would probably be keen to settle the claim. He told me about his firm’s charges and how much it would cost me to bring the case to court and how long it would take to come to court if the claim could not be settled. He later confirmed all this advice in a letter he sent me dated 5th December 2019, which also gave details of the firm’s “grievance” procedure. On that day, he took down details of the accident, my injuries and my loss of earnings. He told me that he would send a couple of letters to the employers and their insurance company to see if they admitted liability and that he would have to instruct an orthopaedic surgeon to prepare a report on my injuries. We discussed the funding of the matter, he asked me for £500 on account of costs and I gave it to him there and then. I was not eligible for public funding and I did not want to enter into any other type of funding agreement. I told him that I had limited disposable income and that I would have to be kept fully informed regarding costs at all times. He told me that solicitors were under a professional duty to keep clients fully informed about the costs of proceedings and that I “need not worry on that score”. After that initial meeting, I did not hear from Mr Bryant for some weeks. I made several telephone calls to Mr Bryant, asking for an update, but he never returned these calls. Eventually, however, he did contact me by phone in early March 2020 to request another £500 on account of costs. I sent him a cheque for £500 and asked him to do all he could to speed up the case. Shortly after this, I got a letter asking me to attend at the office so that a further statement could be taken from me about the circumstances of the accident and details of my loss of earnings. I therefore attended a meeting with Mr Bryant on 6th April 2020 in which he took down details about these matters. He asked me whether Rajesh Patel would be prepared to make a statement on my behalf. I told him he would, as would the lorry driver, Jack Barry. I gave him the addresses of both these people. I told him that I had made a full recovery but that for 6 months I was unable to return to my employment or carry out my work as a carpenter. I gave him full details of my loss of earnings for the 6-month period together with my accounts for the carpentry business, which clearly supported the figures I wished to claim. I also told him I had incurred travelling expenses in the sum of £80 going to and from the hospital and physiotherapist and also had 20 sessions of physiotherapy that cost me £25 per session. I gave him receipts for all these costs. He told me that he had arranged for me to attend an appointment with Mr Clancey, Orthopaedic Surgeon at St Luke’s Hospital in Islington, on 26th May 2020. He also said that he would instruct Counsel to advise on the merits and quantum after Mr Clancey’s report was obtained. I told him to issue proceedings and get the matter before the court as soon as possible. He confirmed that he would do so if necessary, but that he would try to save costs and time by attempting to get the other side to settle the claim first. At his request, I gave him another cheque for £500 on account of his costs. I saw Mr Clancey on 26th May 2020, and a copy of his report is attached. He basically confirmed that I had damaged my knee, that it had taken 6 months to recover, and that I had made a full recovery. At Mr Bryant’s suggestion, I paid Mr Clancey the sum of £600 for that report. 4 © City, University of London 2021

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Eventually, on 27th July 2020, Mr Bryant wrote to me to say that negotiations to date had been unsuccessful and that it was now necessary to issue proceedings, which he had done that day, but he still hoped that the other side would settle the matter. I telephoned him on receipt of this letter and asked him how much I was likely to recover. He told me that my claim was worth about £29,000 in total, including my personal injury damages (my present solicitors have confirmed that this advice was correct) and that he would get back in touch if there was an offer on the table, or a trial date was set. In the meantime, he told me to get on with my life and leave the legal stuff to him. I followed this advice and decided to worry no more about the claim, but heard nothing more from him for many months, until he wrote to me on 11th May 2021 to say that my claim had been struck out, that I had been ordered to pay the other side’s costs and that it would be sensible if I instructed new solicitors if I wanted any further advice in relation to the matter. I then consulted my present solicitors, who advised me that I had a good claim against my former solicitors, and that I should issue proceedings against them. They told me that I had a strong chance of successfully recovering all the sums that I would have recovered in the first claim against my employers had it not been struck out. I also wish to recover the costs that I was ordered to pay my employers as a result of that action being struck out. Moreover, I do not see why Brightwell & Bryant should have the benefit of the sums I paid them because they clearly did little to advance my claim, and that money was effectively wasted.

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MEMORANDUM FROM: EDITH WALSH (trainee solicitor) TO: TIM CONNOLLY (partner in Morland & Smith) Spent 4 hours perusing this file of papers and carrying out all relevant legal research. It is clear that Brightwell & Bryant have been seriously at fault in this case. After taking some preaction steps, they appear to have let things slide badly after proceedings were issued. Although negotiations were initiated at the pre-action stage, it appears that they were not pursued – either then or subsequently - with appropriate vigour. The papers on file are somewhat disorganized and appear to be incomplete. I have summarised below the relevant matters which are contained in the file. The solicitors were instructed on 5th December 2019. There is an attendance note and a letter dated 5th December 2019 which confirms the details referred to by Mr Thompson in his proof of evidence. There is a further attendance note dated 2nd March 2020 that reads “Attended on client on phone. Assured him matters are progressing. Requested further £500 on a/c.” An attendance note on file dated 6th April 2020 records details of the accident, the losses the client suffered and details of the two witnesses, and that “client handed over all relevant documents”. All the supporting documents are enclosed in an envelope tucked into the file. The attendance note also records that £500 was paid by client on account of costs. No steps seem to have been taken to contact the witnesses, nor were statements ever taken from them. There is a letter before claim on file dated 14th April 2020 and some further correspondence dating from late April 2020 relating to the joint selection of the medical expert, Mr Clancy, but the employer’s replies are not present. A memo dated 8th June 2020 records that Mr Clancey’s report had been obtained and sent to the client for information. A Claim Form was issued on 27th July 2020, just over a week before the expiry of the limitation period. This was simply a generally endorsed Claim Form, claiming “damages for negligence arising out of an accident at work on 4th August 2017, details are contained in the Particulars of Claim”. It appears that the Claim Form was served by first class post - date of posting Thursday 30th July 2020, so deemed to be served on Monday 3rd August 2020. The Defendants acknowledged receipt by letter dated 14th August 2020 and asked for the Particulars of Claim to be served on them as soon as possible, so that “it may be possible to re-commence negotiations with a view to settling this matter”. There is a letter from Grate & Goode, the solicitors acting for The Furniture Co Ltd dated 3rd September 2020, and sent by email on that date, pointing out that the time for service of the Particulars of Claim had now expired and asking for the Particulars of Claim to be served as soon as possible, otherwise an application would be made to the Court. It appears that Brightwell & Bryant did not respond to this reminder or serve the Particulars of Claim. By CPR r 7.4, the Particulars of Claim should have been served within 14 days after service of the Claim Form and no later than the latest time for serving the Claim Form. This means 6 © City, University of London 2021

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that the Particulars of Claim should have been served by 17th August 2020, (and certainly by 27th November 2020, which is the last day for service of the Claim Form). On 9th November 2020, the Defendants applied to the Court under CPR r 3.4 for an Order requiring the Claimant to serve the Particulars of Claim, and in default the claim should be struck out. This application was heard by District Judge Hatchard on 18th November 2020. District Judge Hatchard made a number of case management directions. In particular, he ordered that: (i) (ii) (iii) (iv) (v)

The Claimant file and serve the Particulars of Claim by 4pm on 2nd December 2020, otherwise the Claim would be struck out; Each party was to give standard disclosure to the other party by list; The latest date for delivery of the lists was by 4 pm on 16th December 2020; Requests for inspection or copies were to be made by 4pm on 23rd December 2020; Witness statements of fact were to be exchanged simultaneously by 4pm on 13th January 2021.

Brightwell & Bryant did serve the Particulars of Claim on 23rd November 2020. A copy of the Particulars of Claim is attached. On 3rd December 2020, The Furniture Co Ltd filed a Defence, admitting negligence, but putting the Claimant to proof as to causation and the extent of the losses he claimed. It is clear from the Defence, and indeed the correspondence that passed between the parties, that the employers were not challenging liability and the only dispute related to quantum, which the Claimant was required to prove. Therefore, if Brightwell & Bryant had acted with reasonable care and skill, the matter would probably have been settled relatively quickly. There are 3 other letters from the Defendant’s solicitors, dated 21st December 2020, 6th January 2021 and 13th January 2021 asking for the Claimant’s list of documents. A letter dated 20th January 2021 asks for disclosure of documents by list and witness statements to be exchanged immediately, otherwise an application would be made to strike out the claim. The solicitors do not appear to have replied to this correspondence. On 22nd February 2021, the Defendant’s solicitors made an application to the Court for the action to be struck out under CPR r.3.4 for the Claimant’s failure to serve his list of documents, or exchange witness statements of fact. That application came before District Judge Hatchard on 26th March 2021 and he had no hesitation in striking out the Claim, dismissing the action and ordering the Claimant to pay the Defendant’s costs of the action, including the application. In his judgment he stated: “A Claimant, who delays issuing proceedings until th...